Madras High Court
The Director General Of Police vs G.Anbalagan on 2 September, 2024
Author: R.Subramanian
Bench: R.Subramanian
W.A(MD)Nos.2109 and 2117 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.A(MD)Nos.2109 and 2117 of 2023
and
C.M.P(MD)No.16834 and 16937 of 2023
1.The Director General of Police,
Mylapore,
Chennai – 4.
2.The Additional Director General of Police,
(Law and Order),
Mylapore, Chennai – 4.
3.The Commissioner of Police,
Trichy City,
Trichy.
4.The Deputy Commissioner of Police,
(Law and Order),
Trichy City, Trichy. ... Appellants/Respondents (In both W.As)
-vs-
G.Anbalagan ... Respondent in W.A(MD)No.2109 of 2023
/Writ Petitioner
I.Paulraj Jones ... Respondent in W.A(MD)No.2117 of 203/
Writ Petitioner
COMMON PRAYER: Appeal filed under Clause 15 of Letters Patent, against
the order dated 16.11.2022 passed in W.P(MD)Nos.917 and 911 of 2021.
For Appellants :Mr.Mr.P.T.Thiraviyam,
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W.A(MD)Nos.2109 and 2117 of 2023
Government Advocate
For Respondent : Mr.G.Thalaimutharasu
COMMON JUDGMENT
[Judgment of the Court was made by R.SUBRAMANIAN, J.]
Aggrieved by the order of the Writ Court, dated 16.11.2022 made in
W.P(MD)Nos.917 and 911 of 2021, the State is on appeal.
2. Challenge is to the order of the Writ Court dated 16.11.2022 in
and by which the Writ Court while quashing the proceedings in C.P.O.Nos.
673and 674 of 2020 dated 23.10.2020 and the consequential order passed
on 02.12.2020 and 05.12.2020 regarding the treatment of the period
during which the respondent in both the writ appeals were out of
employment, directed the appellants to treat the period from 07.10.2004
till the date of reinstatement as on duty and also directed the appellants to
pay salary from 03.09.2010.
3. The respondents who were appointed as Grade-II Constables in
the year 1993 were visited with a charge memo on 31.12.2002. After an
enquiry, the Disciplinary Authority imposed a punishment of dismissal
from service. The same was appealed against by the respondents. The
Appellate Authority namely the Commissioner of Police, Trichy, confirmed
the order of dismissal from service. The respondents sought for a review
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W.A(MD)Nos.2109 and 2117 of 2023
under the Police Subordinate Service (Discipline and Appeal) Rules. The
revisional authority, namely, the Additional Director General of Police(Law
& Order), held that the punishment is disproportionate to the proved
delinquency and reduced the punishment, to reduction in time scale of pay
by two stages for one year and also concluded that the period of reduction
shall not operate to postpone the future increment. This order of the
revisional authority was passed on 12.06.2024. However, the Director
General of Police took up a suo motu review and by an order dated
07.10.2004 while setting aside the order the revisional authority, restored
the order the Disciplinary Authority namely the punishment of dismissal
from service. This order made by the Director General of Police on
07.10.2004 was challenged by the respondents. W.P(MD)No.765 of 2005
was filed by the respondent in W.A(MD)No.2109 of 2023 and W.P(MD)5837
of 2005 was filed by the respondent in W.A(MD)No.2117 of 2023.
4. The writ petitions came to be disposed of by this Court on
03.09.2010. After elaborate discussion of the Rule position, this Court
concluded that there is no power of second review vested with the Director
General of Police under the Police Subordinate Service (Discipline and
Appeal) Rules. Therefore, the order the Director General of Police, dated
07.10.2004, was set aside with a direction to reinstate the respondents
with all attendant benefits. Though the order in the writ petition came to
be passed on 03.09.2010, Appeals were sought to be filed by the
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W.A(MD)Nos.2109 and 2117 of 2023
Department in W.A(MD)SR.Nos.5629 and 5633 of 2014 along with an
application seeking condonation of delay of 1162 days. The delay
applications came up for hearing before the Hon'ble Division Bench on
24.09.2018. The same were dismissed on the conclusion that the delay
has not been properly explained. Thereafter, the respondents were
reinstated into service on 25.03.2019. When the respondents sought for
the orders regarding the treatment of the period during which the
proceedings were pending before this Court, the Department passed its
order impugned in the writ petitions treating the period of suspension
between 30.09.2002 to 15.02.2004 as unearned leave with half pay and
the period between 16.02.2004 to 24.03.2019 as leave without pay. This
order was subject matter of challenge in the present writ petitions. Before
the writ Court, it was the contention of the Department that the
respondents have requested for such treatment by their letter dated
15.10.2020. It was the contention of the respondents before the Writ
Court that the said letter was obtained against their wishes.
5. The Writ Court considering the status of the respondents in the
appeals and the fact that they have been fighting with the Department for
almost 16 years from 2004 to 2020, concluded that the letter dated
15.10.2020 will not bind them. On the said conclusion, the writ Court
allowed the writ petitions recording the concession made by the learned
counsel for the petitioners that he would be satisfied if the petitioners
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W.A(MD)Nos.2109 and 2117 of 2023
granted monetary benefits from 03.09.2010 the date on which their earlier
writ petitions were allowed by this Court till the date of their reinstatement
and the period from 07.10.2004 to be treated as period on duty for
calculation of other benefits. Aggrieved, the Department is on appeal.
6. We have heard Mr.P.T.Thiraviyam, learned Government Advocate
for the appellants and Mr.G.Thalaimutharasu, learned counsel appearing
for the respondent in both the writ appeals.
7. Mr.P.T.Thiraviyam, learned Government Advocate would
vehemently contend that the principle 'No-Work, No-Pay' should be
applied. He would also point out that under Sub-Clauses 4 and 5 of
Fundamental Rule 54, it is incumbent for of the competent authority to
pass orders regarding treatment of the period of absence during which
disciplinary proceedings are pending and if there is no such positive
direction, it will be treated as leave without pay. He would also fall back
upon the letter dated 15.02.2020 alleged to have been executed by the
respondents.
8. On the second question, namely, binding nature of the letter
dated 15.02.2020, we are in complete agreement with the opinion
expressed by the learned single Judge. The plight of a Grade-II Constable,
who has fought from 2004 to 2020 from the date of their removal from
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W.A(MD)Nos.2109 and 2117 of 2023
service till the date of reinstatement can well be imagined. They would have
been so meek and weak to sign on the doted lines just to enter the office
again. Therefore, we do not think that we should give weightage to the
letter, dated 15.02.2020.
9. On the contention based on Rule 54(5), Rule 54(5) would only
apply to competent authority and not to this Court. The order made in the
writ petitions where the enhancement of the punishment was challenged
makes it very clear that the writ petitioners would be entitled to all
benefits. Operative portion of the order reads as follows:
“47. As this Court has come to the conclusion that the
impugned order is without jurisdiction, it deems it fit not to delve
into other contentions, on the merits. In view of the above, both
the writ petitions are allowed.”
10. Once the writ petitions are allowed, the prayer in the writ
petitions should be deemed to have been granted in full. The prayer in the
writ petitions was as follows:
“Prayer in W.P(MD)No.765 of 2005: Petition filed under Article
226 of the Constitution of India, praying for issuance of Writ of
Certiorarified Mandamus, calling for the records pertaining to
the impugned orders of the 1st respondent in his proceedings
Rc.No.167536/PRI(3)/2004, dated 07.10.2004 and quash the
same consequently direct the respondent to reinstate the
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W.A(MD)Nos.2109 and 2117 of 2023
petitioner into service as police constable with all attendant
benefits and back wages.
Prayer in W.P(MD)No.5837 of 2005: Petition filed under Article
226 of the Constitution of India, praying for issuance of Writ of
Certiorarified Mandamus, calling for the records pertaining to
the impugned orders of the 1st respondent in his proceedings
Rc.No.167536/PRI(3)/2004, dated 09.12.2004 and quash the
same consequently direct the respondent to reinstate the
petitioner into service as police constable with all attendant
benefits and back wages.”
11. Therefore, the appellants cannot now contend that this Court
has not passed any orders regarding treatment of the period during which
the respondents were out of employment and therefore, it would be open to
them to treat the same as leave without pay.
12. The order restoring the major punishment of dismissal from
service was set aside on the ground that there was no power of suo motu
review under the Rules. This Court has also allowed the writ petitions in
full, thereby granting the prayer for reinstatement with all attendant
benefits also. Hence, it cannot be contended that this Court has not made
any specific orders regarding treatment of the period during which the
respondents were out of employment. Strictly, the respondents would be
entitled to salary from 07.10.2004. However, since the respondents have
given up the claim for monetary benefits between 07.10.2004 to
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W.A(MD)Nos.2109 and 2117 of 2023
03.09.2010, the writ Court granted monetary benefits from 03.09.2010.
13. For the foregoing reasons, we do not see any reason to interfere
with the direction issued by the writ Court. The Department will comply
with the order of the writ Court in its letter and spirit, if the same has not
already been complied with, within a period of twelve weeks from the date
of receipt of this order.
14. These writ appeals are dismissed. No Costs. Consequently,
connected Miscellaneous Petitions are closed.
[R.S.M., J.] [L.V.G., J.]
02.09.2024
NCC :Yes/No
Index :Yes/No
Internet: Yes
PM
To:
1.The Director General of Police,
Mylapore,
Chennai – 4.
2.The Additional Director General of Police,
(Law and Order),
Mylapore, Chennai – 4.
3.The Commissioner of Police,
Trichy City,
Trichy.
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W.A(MD)Nos.2109 and 2117 of 2023
4.The Deputy Commissioner of Police,
(Law and Order),
Trichy City, Trichy.
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W.A(MD)Nos.2109 and 2117 of 2023
R.SUBRAMANIAN, J.
and
L.VICTORIA GOWRI, J.
pm
W.A(MD)Nos.2109 and 2117 of 2023
02.09.2024
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